Posts Categorized: senate judiciary committee

On April 10, 2018, President Trump nominatedAllen Winsor to the U.S. District Court for the Northern District of Florida. Winsor, a current justice on Florida’s First District Court of Appeal, previously served as Solicitor General of Florida from 2013 to 2016, under Attorney General Pam Bondi. In that capacity, he defended several troubling laws, including repeated efforts in Florida to dilute the vote of persons of color and make it harder for Floridians to vote. He also advanced efforts to erode reproductive rights and marriage equality, as well as supported questionable practices as the state carried out the death penalty.

As the Senate Judiciary Committee reviews Winsor’s controversial positions and activities during government service, it is worth noting current committee Chairman Chuck Grassley’s statement in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit: “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”

Like a vast majority of Trump’s nominees, Winsor is a member of the Federalist Society.

Alliance for Justice has prepared this blog to highlight areas of Winsor’s record, based on our review thus far, in which we believe greater scrutiny by the Senate is warranted. Click hereto read our opposition letter.Read more

Sunlight is the best disinfectant. So declared Louis Brandeis in 1913, before he went on to join the U.S. Supreme Court.

That same belief in the cleansing power of transparency led to the creation of Sunshine Week for the federal government, which this year falls on March 11-17. Sunshine Week is an opportunity to focus on accountability in government, and from the theater at the National Archives to the halls of the Department of Justice, the government is supposed to use this week to acknowledge our right to know how federal offices and agencies are spending their money and fulfilling their missions.

Notably, even the Senate Judiciary Committee is getting in on the action, with a hearing on “The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead.”Read more

I resist the proclamation’s talk of “glass ceilings,” pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment and the need generally for better “working conditions” for women (read: more government).

Don Willett, nominee to the Fifth Circuit Court of Appeals, objecting to draft proclamation of then-Governor George W. Bush honoring the Texas Federation of Business and Professional Women

Despite repeated attempts to meld the two into one “right side of history” campaign, the Sexual Revolution is not the Civil Rights Movement….The “Sexual Revolution,” “was rooted in the soil of elitist postmodern philosophy, spearheaded by secular libertines, and was essentially ‘radical’ in its demands.” “It sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults. In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.

Matthew Kacsmaryk, nominee to the Northern District of Texas

During the presidential race, Donald Trump’s campaign was littered with sexist comments and misogynistic behavior. He bragged about getting away with sexual assault in his Access Hollywood tape, talked about “blood coming out of [Megan Kelly’s] wherever,” and insulted fellow candidate Carly Fiorina’s appearance. Read more

On Wednesday the Senate Judiciary Committee held Amy Coney Barrett’s confirmation hearing for a seat on the Court of Appeals for the Seventh Circuit. Prior to the hearing, Alliance for Justice and others had raised serious concerns about Barrett’s past academic writing, which suggested that she would put her personal views ahead of the law and would feel free to decline to apply Supreme Court precedent.

Democratic senators demanded that Barrett answer tough questions about her most controversial writings. But instead of fully and truthfully answering senators’ questions, Barrett repeatedly gave misleading testimony. In some instances, Barrett’s answers flatly misrepresented statements she had given in the past. Read more

Today, the Senate Judiciary Committee voted along party lines to advance the nomination of Judge Neil Gorsuch for a seat on the Supreme Court. Judge Gorsuch’s nomination will now move to the floor thanks to the votes of all 11 Republican members of the Committee and without attracting a single Democratic vote.

Moreover, it became clear at today’s hearing that Judge Gorsuch will be unable to amass bipartisan support in the full Senate in the form of the 60 votes needed to secure a lifetime spot on the Court. This revelation led Republicans to cry foul, claiming that the 60-vote threshold is unnecessary and concluding that the only reasonable course of action is to change the Senate rules to require merely 51 votes to confirm a Supreme Court nominee. Read more

As the Republican Senate has brought judicial confirmations to a standstill, refusing even to hold a hearing for Supreme Court nominee Merrick Garland, and confirming lower court judges at a historically slow rate, the most obvious explanation for all the obstruction has been politics: Republicans would rather spite President Obama and preserve judicial vacancies for a Republican president than ensure a fully-functioning judiciary. But for Thom Tillis, the Republican Senator from North Carolina and member of the Judiciary Committee, the problem appears to be (for better or worse) an alarming amount of misinformation, whether it be the importance of filling judicial vacancies, how bad the vacancy crisis has become under GOP leadership, or the Senate’s basic constitutional duty to confirm judges.

On Wednesday, just before the Senate left for a seven-week vacation, Tillis objected to voting on slate of uncontroversial judicial nominees because, in his words, confirming judges has “nothing to do with doing our jobs.” That startling claim would certainly surprise the Constitution’s drafters, who wrote that the Senate must provide “advice and consent” on judicial nominations, and Democratic members were no less shocked. “I’m not sure what version of the Constitution you’re reading that doesn’t say confirming judges is part of your job in the United States Senate,” Senator Elizabeth Warren said. Senator Mazie Hirono added, “Of course confirming judges is part of the Senate’s job. In fact, only the Senate can do that.” Read more

Since Republicans took over the Senate in January 2015, judicial nominees have been subject to systematic, politically motivated obstruction led by Senate Judiciary Committee Chairman Chuck Grassley.

This senseless obstruction goes beyond the unprecedented refusal even to give Supreme Court nominee Merrick Garland a hearing. Under Grassley’s leadership, this Congress is on pace to be the worst for judicial confirmations in more than a half-century. While Grassley refuses to consider dozens of qualified, noncontroversial nominees, the number of judicial vacancies has nearly doubled, and the number of officially-designated judicial emergencies has increased 150%. While leading the Judiciary Committee, Grassley’s prioritized partisan politics over staffing our courts, needlessly creating a judicial vacancy crisis that threatens our nation’s justice system.

An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.

Feinstein’s proposal may sound unremarkable to hardworking Americans who do their jobs every day without fanfare or prodding, but for this Republican-led Senate the idea of doing actual work feels revolutionary. Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing. Read more

With Majority Leader Mitch McConnell stalling every nominee on the Senate floor, judicial confirmations have been hard to come by in 2015. Only four judges have been confirmed, and even nominees selected by their own Republican senators have suffered from McConnell’s obstruction.

On May 21, when the Senate doubled its grand total of judicial confirmations from two to four, it did so by unanimously confirming two district court judges who each endured a nearly three-month wait on the Senate calendar.

Such delay is never justified, particularly for uncontroversial consensus nominees. The Senate has a constitutional obligation to confirm judges, and long delays can hamper the administration of justice and keep everyday Americans locked out of court.

Four district court nominees voted out of the Judiciary Committee today are especially compelling examples of this point, as they’ve been nominated to some of the most overburdened courts in the country.

Judge Dale Drozd

Three of the four would fill officially designated “judicial emergencies,” and the fourth, a nominee to the Western District of New York, would sit in a Buffalo courthouse that is now without an active judge for the first time in at least 55 years. These nominees were voted out of committee with bipartisan support, and should be immediately confirmed so they can start working for the American people.

Dale Drozd would fill a longstanding judicial emergency (the vacancy is nearly 1000 days old) in the Eastern District of California, where he currently serves as a Magistrate Judge. At his confirmation hearing, Drozd testified about the district’s crushing caseload that has persisted for more than a decade. He said that the court was in a “crisis situation” with judges effectively “maxed out.” The overwhelming caseload, Drozd said, “has tremendous impact on our ability to deliver justice within our district.”

EDCA Judge Lawrence J. O’Neill echoed that same concern when the Wall Street Journal asked him about growing caseloads and long delays in the district. “Over the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’” he said. “And the simple answer, which I cannot give them, is this: It is not justice. We know it.”

Indeed, Judge Drozd’s confirmation would only begin to solve the district’s problems. The non-partisan Judicial Conference of the United States found that caseloads would remain too high even if every vacancy were filled, and recommended Congress double the number of EDCA judgeships from six to 12.

In the Western District of New York, multiple vacancies in Buffalo leave the city without a single active federal judge for the first time in over half a century. Lawrence Vilardo, voted out of committee today, would fill one of them. Despite the willingness of some senior judges to continue taking cases, Buffalo is currently experiencing one of the nation’s worst backlogs, with civil cases taking an average of five years to go to trial. As reported in The Buffalo News, 14 percent of the civil cases in the Western District are more than three years old, and the district’s 744 new cases per judge last year place it in the top 10 of federal districts nationwide.

The other two New York nominees, LaShann DeArcy Hall and Ann Donnelly, are both nominated to the Eastern District, and have been waiting since last November to fill judicial emergencies.

On Mitch McConnell’s watch, the number of judicial vacancies, including those designated as judicial emergencies, has steadily grown over the last five months. But with the four nominees voted out of committee today (and the three pending nominees they join on the Senate floor), McConnell and the Republican majority have an opportunity to do the right thing: confirm them now.

In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.

He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.

In a previous edition of Benched!, we explained how, when Democrats controlled the Senate, Republicans would routinely and needlessly “hold over” judicial and executive nominees rather than allowing the committee to vote at the first opportunity. This procedural tactic, normally reserved as a courtesy to senators who need more time to examine a candidate’s record, allowed Republicans to take an extra week before sending nominees to the Senate floor.

But now it’s the Republicans, not Democrats, who are setting the committee schedule. And while it might be reasonable in some cases for the minority party to need more time on a nominee, it is plainly a pretext for the majority party to claim it needs more time than it has given itself. Paul Gordon at People for the American Way explained this yesterday, writing that today we would find out “whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.”

This morning, we got our answer. Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.

All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee. Lynch has the support of many Republicans on the committee, including Senator Lindsey Graham (R-S.C.), who told reporters “I’m ready to vote.”

For no apparent reason, Texans will now have to wait an extra week until two vacancies deemed “judicial emergencies” by the U.S. Courts—seats that have been empty for over 700 days each—will be filled. The country will have to wait an extra week for a new attorney general, whose confirmation has already taken the longest of any attorney general nominee in the past 30 years.

Since Election Day, numerous stories have said that Democrats and progressive groups want ju dges confirmed in the upcoming “lame duck” session because it will be harder to get confirmations once the Republicans take control of the Senate in January. But the most important reasons for confirming judges during the lame duck would apply no matter who was slated to control the Senate next year.

Here are four reasons why the Senate should confirm at least 24 district court nominees—16 of whom are pending on the floor and eight of whom are ready to be reported out of the Judiciary Committee—before the end of the year:

The fair administration of justice demands it. When judgeships sit vacant, it’s not the Alliance for Justice, the President, or the Senate that suffers—it’s the American people. Judicial vacancies mean small businesses struggle with uncertainty, injured individuals drown under the weight of medical bills, and victims of discrimination must wait for justice. These injustices are particularly acute in courts that have vacancies designated as “judicial emergencies” because they simply don’t have enough judges to handle their caseloads. Paul Gordon at People for the American Way has done an excellent job documenting just how great the need is to fill the vacancies for which there are pending nominees.

Delaying confirmations wastes time and taxpayer money. When nominees are not confirmed before the end of a Congress, they must be re-nominated in the new Congress. That’s not just a formality. It means reams of duplicative paperwork for Justice Department and White House employees. It means the Judiciary Committee has to waste time with duplicative confirmation hearings and committee votes for nominees who have already been vetted and approved. And it means that precious Senate floor time is spent doing last year’s work. Because Senate Republican obstruction led to a whole host of nominees being returned to the President at the end of last year, the Senate spent the first five months of 2014 voting on judicial nominees from 2013. With so much that needs to be done for the American people, it makes no sense to spend next year doing this year’s work.

The expiration of agreed-upon Senate rules changes could lead to even more time wasting. At the beginning of the 113th Congress, an agreement was reached to reduce post-cloture “debate” time for district court nominees from 30 hours to 2 hours equally divided. In practice, Democrats have yielded back their one hour of post-cloture time, meaning district court nominations have taken just one hour each after cloture is invoked. That deal goes away at the end of this Congress. So if Senate Republicans continue to insist on cloture votes for every single nominee (as they have for the past year), the Senate could spend 24 hours to confirm these 24 nominees now, or 720 hours to do the same work next year. And keep in mind that the Senate can’t do anything else during post-cloture time unless all 100 senators agree.

These are the issues we’ve been talking about since well before the election, and they’re the reasons we’re continuing to fight for confirmations now.

Shortly after courageous Senators, fed up with obstruction, changed Senate rules to allow a simple majority to end a filibuster, AFJ President Nan Aron wrote this in The Huffington Post:

Clearly, going forward, the Republicans will be in no mood to be cooperative and will almost certainly use every tactic they can think of to throw a wrench into the process.

The change in rules already has benefitted the American people. Two highly-qualified judges have been named to the U.S. Court of Appeals for the D.C. Circuit, and a host of well-qualified executive branch nominees have been confirmed.

But Nan Aron’s prediction has proven accurate.

Sen. Patrick Leahy

With the filibuster unavailable to thwart judicial nominees on the Senate floor, Senate Republicans have doubled down, turning to the Senate Judiciary Committee—and arcane procedural rules—to continue their partisan obstruction. Rather than acting in the nation’s best interest, or at least evincing a modicum of concern over the record-high number of judicial vacancies that plague our federal justice system, the Senate Republicans are trying to grind the confirmation process to a halt. For purely partisan reasons—which is to say, for spite, and nothing more—Senate Republicans are trying to make the Senate Judiciary Committee the place where judicial nominations—all judicial nominations—go to die.

Last week, Republicans invoked a little known and rarely enforced Senate rule to cancel the committee’s executive session, where 15 judicial nominees were set to have votes and move to the floor. A few weeks before that, Republican committee members blocked another executive meeting by not showing up, thereby preventing a quorum.

And today, Republicans used procedural tactics to prevent a confirmation hearing for five consensus district court nominees, one of whom would fill a judicial emergency. All of these nominees have approval from their home state Senators, including Republican Senators in Maine and Kansas, but that doesn’t matter. Just as we saw with Republican opposition to President Obama’s nominees for the D.C. Circuit, individual merit—that is, the question of whether these nominees would make good judges—is entirely beside the point. This is payback time for Senate Republicans, and if it comes at the expense of Americans waiting to stand up for their rights in court, so be it. Senator Patrick Leahy—the Chair of the committee—has called this behavior a “Republican shutdown of the Judiciary Committee,” and observed that it “is consistent with the obstruction we have witnessed over the last five years” that has “led to record high vacancies in federal courts throughout the country.”

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Meanwhile, preventing the committee from conducting regular business, though extraordinary, is not the only means of Republican obstruction. Even if the committee had held today’s hearing, it would have excluded a number of nominees who are still waiting (and waiting) for “blue slips” from home state Senators.

In keeping with Senate tradition, Senator Leahy will not schedule a hearing unless a nominee’s home-state senators give approval via “blue slips.” That’s why there was no nominee for a circuit court of appeals scheduled for today’s hearing. Eleventh Circuit nominee Robin Rosenbaum is set to move forward but the committee is still waiting, inexplicably, for Florida Republican Senator Marco Rubio to give his assent. (Rubio’s stalling on Rosenbaum is especially egregious because the Eleventh Circuit currently has four judicial emergencies, and another nominee, Jill Pryor, has been waiting for blue slips from the Georgia Senate delegation since February of 2012. Recall how, during the D.C. Circuit debate, Republicans kept saying more attention should be paid to judicial emergencies.)

Also missing from today’s schedule were five nominees to the District of Arizona, all of whom would fill longstanding judicial emergencies. Republican Senator Jeff Flake has withheld his blue slips on this entire slate of nominees, and his reason for doing so seems to be in flux. On December 8, his staff told that the Wall Street Journal that his review of the nominees was not yet complete. But less than a week later, on December 14, he told the Arizona Republic that he’s waiting for President Obama to name a sixth nominee—to fill the state’s final judicial vacancy—before he lets the first five have a hearing. The judicial vacancies in Arizona represent a crisis that worsens by the day, and there is simply no reason, with five pending nominees who have all been approved by Flake’s fellow Arizona Republican, Senator John McCain, for it to persist any longer.

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By abusing the filibuster on nominations, the Senate Republicans left the majority no alternative but to change Senate rules. Thus far, Senator Leahy has shown great fidelity to the blue slip tradition. But he has also cautioned Republicans that blind, indiscriminate obstruction cannot be used to dismantle our democratic processes.

As Nan Aron wrote last month:

At some point we think the Senate Judiciary Committee will have no choice but to revisit the current blue slip process, or else a large chunk of the country will not have a fully functioning judicial system.

If the obstruction continues, that “some point” may be fast approaching.

This is a committee whose Republican members include Darrell Issa, Steve King, and Louie Gohmert, so it will come as no shock to anyone that a topic that sounds like a segment on a Fox News show was not designed to dispassionately explore the nuances of judicial nominations and the workloads of federal judges.

So what was this hearing really about?

It turns out it was actually about President Obama’s nomination of three highly qualified individuals to the U.S. Court of Appeals for the D.C. Circuit, the court right below the Supreme Court in importance. You might ask why the House of Representatives is conducting a hearing on a subject that is the constitutional purview of the Senate, but the future of the D.C. Circuit is so important that it’s getting the full right-wing, high-volume Sturm und Drang treatment, even in places it doesn’t belong.

Of course the real action is on the other side of the Hill where Republicans in the Senate are doing everything they can think of to prevent the president from filling the three seats out of 11 that are currently vacant on the court. The Republicans are threatening a triple filibuster of all the nominees–no matter how qualified they are–claiming absurdly that there just isn’t enough work for the full complement of 11 judges the law requires. They began carrying out their threat today.

A funny thing happened at a Senate Judiciary Committee hearing yesterday: Tenth Circuit Court of Appeals nominee Carolyn McHugh appeared for her confirmation hearing, and no Republican Senator complained that the Tenth Circuit’s caseload is too small to confirm another judge.

Judge Carolyn McHugh

It’s been a different story for President Obama’s three D.C. Circuit nominees. At each of their respective hearings, the Republicans sounded the same refrain: the D.C. Circuit doesn’t have enough cases to appoint new judges, new judges are too expensive, and the President’s attempt to fill preexisting, vacant seats is mere “court packing” that should be opposed.

Alliance for Justice President Nan Aron issued the following statement in response to the vote by the Senate Judiciary Committee today on President Obama’s nomination of Nina Pillard to serve on the United States Court of Appeals for the District of Columbia Circuit:

We commend the majority of the Senate Judiciary Committee for supporting President Obama’s nomination of Nina Pillard for the D.C. Circuit Court of Appeals. We are disappointed, but not surprised, that all of the committee’s Republicans chose to put politics ahead of qualifications and opposed this outstanding nominee.

The American people have good reason to be fed up with Republican obstruction and delay. They demand and deserve courts that have enough judges to administer justice fairly and swiftly. Americans are entitled to a swift yes-or-no vote by the full Senate on Nina Pillard and President Obama’s other judicial nominees.

On Tuesday, the Senate Judiciary Committee held a high-profile hearing on President Obama’s nominee to head the Bureau of Alcohol, Tobacco, Firearms and Explosives, B. Todd Jones. Jones is an exceptionally qualified nominee. He currently serves as both the acting director of ATF and as the U.S. Attorney for the District of Minnesota (a position for which he was unanimously approved by the Judiciary Committee in 2009).

B. Todd Jones

Though ATF plays a critical law enforcement role, including involvement in investigating tragedies like the Sandy Hook school shootings, the Boston Marathon bombing, and the industrial explosion in West, Texas, the agency has not had a permanent director since 2006 – that’s when the law was changed to require Senate confirmation That sad reality may continue, as Republican questions at the hearing suggest that they may continue to obstruct executive nominees as a way to prevent agencies they don’t like from functioning.

Many Republican questions raised tangential concerns about Jones’s record. For instance, the Committee’s ranking member, Sen. Charles Grassley (R-Iowa)—yes, the very same senator who wants to get rid of three judicial seats on the second most important court in the country, the D.C. Circuit Court of Appeals—pressed Jones to answer for a botched ATF operation, Fast and Furious. But Jones actually was brought in to clean up after the fact.

Moreover, just before the hearing ended, there was a telling exchange between Grassley and Sen. Amy Klobuchar (D-Minn.). Sen. Grassley requested that the hearing record remain open for longer than the normal one week period, based on the expectation that there were “a lot of things that could come up.” Senator Klobuchar agreed to keep it open for two weeks. Sensing dissatisfaction in Grassley’s reaction, she asked, “What would you like?” Senator Grassley responded, “Until we get done with this whole [thing].” While the senators’ quick negotiation seemed to be good-spirited, it sounds like Sen. Grassley has no interest in quickly moving Jones’s nomination to the Senate floor. This stonewalling is particularly hypocritical in light of repeated Republican statements that we don’t need new gun laws, we just need to “enforce the laws on the books.”

Of course, Jones is just one of a slew of highly qualified Obama nominees that Republicans so farhave refused to confirm because they disapprove of the organization itself (see EPA Administrator nominee Gina McCarthy, CFPB director nominee Richard Cordray, Labor Secretary nominee Tom Perez, and three NLRB nominees. If Republicans continue to hold agencies hostage by unfairly blocking confirmations, the Senate majority should revisit reforming Senate rules.

Republican obstruction of the president’s nominees on the Senate floor through use of (often silent) filibusters has been well-documented, but in the past two days the public has seen what those of us working on judicial nominees have known for far too long – the obstruction is often just as bad at the committee level.

Gina McCarthy

Just one day after using an arcane procedural maneuver to delay a committee vote on the nomination of Tom Perez to serve as Secretary of Labor, Senate Republicans have used another underhanded ploy to delay a committee vote on the nomination of Gina McCarthy to lead the Environmental Protection Agency. They boycotted a meeting of the Senate Committee on Environment and Public Works to prevent the Committee from even holding a vote. Committee Republicans could hardly argue they lacked sufficient information to form an opinion on McCarthy – she answered more than 1,000 questions from committee members.

On one level this behavior is understandable. To Senate Republicans, one of the only things as bad as a Labor Secretary who will protect working people is an Environmental Protection Agency administrator who will protect the environment. But the brazen nature of these committee delay tactics is shocking nonetheless.

Unfortunately, in the context of judicial nominations, such committee delays have become commonplace – and start even earlier in the process. By committee tradition,* the Senate Judiciary Committee typically won’t hold a hearing on a judicial nominee unless both home-state senators agree to allow the nomination to move forward. Like any such tradition, it works only as long as it is not exploited. But that is exactly what Senate Republicans are doing now.

And, coming full circle, hanging over all of this obstruction at the committee level (and sometimes before) is the knowledge that even if nominees survive those obstacles, they face the specter of the filibuster once they reach the floor. The events of the past two days make clear, once again, that the weak-kneed agreement on Senate rules reached in January cannot come close to constraining the Republicans’ willingness to turn rules and traditions into weapons of mass obstruction. The Senate needs to back to the drawing board and enact tough-minded rules reform now.

*-Although this tradition has been in place to some degree for many years, not all Judiciary Committee chairmen have been as generous as the current one in waiting for both home-state senators to indicate assent before holding a hearing.

Senator Charles Grassley (R-Iowa) recently responded to a letter sent to him from 16 national and Iowa groups criticizing him for unnecessary delays in confirming judicial nominees. In his response Grassley claimed that:

“[F]or the four years of this administration, we approved 160 nominations, and during the same period of time in the last Bush administration, there were 120 nominations.”

This statement is both wrong and intentionally misleading.

First off, Grassley is comparing the first four years of the Obama Administration to the second four years of the Bush Administration. This is not “the same period of time.” Second, this is particularly misleading because Bush had a comparatively huge number of confirmations in his first term—202 in fact (see chart below). During Bush’s second term, there simply were not that many vacancies to fill.

With his statistical slight-of-hand, Grassley is trying both to minimize his—and his fellow Republicans’— obstruction of President Obama’s nominees during the last four years and make himself look reasonable!

You might expect more transparency and honesty from the ranking member of the venerable Senate Judiciary Committee. Instead, it seems, we’re getting one more attempt to mislead the public and obstruct nominees going forward. Iowans—and Americans—deserve better.

The Senate Judiciary Committee held hearings today (September 19) on the nominations of Katherine Polk Failla, to the Southern District of New York; Pamela Ki Mai Chen, to the Eastern District of New York; Troy L. Nunley, to the Eastern District of California; Sheri Polster Chappell, to the Middle District of Florida; and Mark A. Barnett, the Court of International Trade. The confirmations of Chappell and Nunley would each fill a judicial emergency vacancy, particularly Nunley’s nomination to the Eastern District of California, which faces the greatest backlog of filings in the country.

Each nominee spoke on the importance of judicial modesty and following precedent. All of the nominees also expressed agreement that some of the most important values of a judge are fairness, willingness to listen to and understand the parties, keeping an open mind, and maintaining the transparency and legitimacy of the bench. The nominees come from a diverse range of backgrounds, including prosecutors’ offices, civil rights enforcement, private practice, and state court judgeships.

Expedient action on nominees is especially important with the Senate session set to come to a close in the coming days. There are currently 10 nominees pending in the Senate Judiciary Committee, including 8 district court and 2 circuit court nominees, and 21 nominees pending on the Senate floor, including 17 district court and 4 circuit court nominees. If the Senate does not act soon to confirm the slew of nominees awaiting votes, the federal courts will go into the November election with 94 total vacancies, 33 of which are judicial emergencies.

The Senate Judiciary Committee will hold hearings on Wednesday, 9/19 on the nominations of Mark Bennett to the Court of International Trade, Sheri Polster Chappell to the Middle District of Florida, Pamela Ki Mai Chen to the Eastern District of New York, Katherine Polk Failla to the Southern District of New York, and Troy Nunley to the Eastern District of California. Chappell and Nunley’s confirmations would both fill judicial emergency vacancies.

As of Wednesday’s hearing, Chappelle, Failla, and Nunley’s nominations will have been pending for 87 days, Barnett’s for 70 days, and Chen’s for 49 days. The hearing will be held at 10:00 a.m., in Room 226 of the Dirksen Senate Office Building.

Senate holds hearing on Citizens United and threats to American voting rights

On Wednesday, the Senate Judiciary Committee held a hearing concerning the 2010 Supreme Court decision in Citizens United – which Senator Jon Tester (D-MT) described as a “disaster for our democracy” – and the threat to voting rights posed by voter suppression laws in states across the country.

﻿﻿Senator Tester should know: the Supreme Court relied on Citizens United to invalidate, without even a court hearing, a century-old Montana state law called the Corrupt Practices Act that brought greater transparency and accountability to campaign finance in Montana. To explain the significance behind Montana’s law and Citizens United, Senator Tester introduced Anthony Johnstone, Assistant Professor at the University of Montana School of Law and former Montana solicitor. Professor Johnstone began by highlighting the recent proliferation of voter ID laws, which have been widely denounced as efforts to disenfranchise poor and minority voters. He then connected Citizens United, the Voting Rights Act of 1965, and voter suppression efforts. While Citizens United and the decisions which followed it have led wealthy and powerful interests to dominate political speech through unlimited spending, assaults on the Voting Rights Act threaten efforts to remove barriers to voting and ensure that minority citizens, specifically African Americans in the South, are able to exercise their right to vote.

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Professor Anthony JohnstoneUniversity of Montana

Professor Johnstone argued that the combination of Citizens United, which opened the floodgates to corporate spending on “independent” political communications, and the 2008 Supreme Court decision in Crawford v. Marion County Election Board, which upheld a voter ID law in Indiana, creates a “double standard” in the Court’s approach to the political rights of different groups in America. While the Supreme Court made it more difficult for eligible minorities and disenfranchised citizens to vote, it expanded the spending powers of wealthy corporations.

﻿﻿﻿﻿One of the most compelling and forceful arguments was made by Elisabeth MacNamara, President of the League of Women Voters of the United States. MacNamara testified that voter ID laws restrict eligible voters from participating in their own government, and that these laws disproportionately affect minorities, the elderly, young voters, veterans, the disabled, and women. The result is a loss of confidence in the institutions of American government. Participation, MacNamara argued, is “key” to democracy, and thus restricting registration is an existential threat. Without broad participation, and thus without the confidence that we are truly a government run by the people, the legitimacy of government actions may be questioned. This is especially so, argued MacNamara, when considering that little evidence exists that voter fraud is a threat to our democracy, while there is evidence that voter ID laws prevent many eligible voters from registering.

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Elisabeth MacNamara League of Women Voters

An important – and insidious – aspect of the restrictive voting laws passed in many states is the effect on voter registration drives, particularly by non-profit organizations. In Florida, for example, a fine of $1,000 would be imposed on any volunteer who does not return a voter registration form within 48 hours. This heavy burden forced non-profits to stop voter registration out of fear of heavy fines. This is especially troubling for minority voters, since a much higher proportion of minority voters are registered during voter registration drives, likely because of greater difficulty in accessing registration materials. Fortunately, since a federal judge in Florida prohibited enforcement of this part of the state’s law, non-profits have been able to continue their voter registration efforts. However, after a year of the law’s existence, significant damage to these efforts has been done. The Florida saga underscores the importance of an administration willing to enforce the Voting Rights Act and judges who understand the fundamental nature of all citizens’ right to vote.

As Senator Sheldon Whitehouse (D-RI) noted, considering Montana’s Corrupt Practices Act is now invalidated, we will soon see which approach is more effective in curbing corruption: allowing unlimited corporate political expenditures and restricting voter registration in the name of preventing fraud, or growing the voter base and limiting corporate political expenditures. As Professor Johnstone testified, we now live under the “Citizens United Court,” of unrestrained rights for corporations and “downgraded” rights for the rest of us.

The Judiciary Committee reported three nominees to the Senate floor at its Executive Meeting Thursday morning. Committee votes on Richard Taranto to fill an appellate seat on the Federal Circuit and Robin Rosenbaum to fill a seat in the Southern District of Florida were supposed to be taken on March 15. However, due to the failure of sufficient committee members to appear on that day (seven of the Democratic committee members were present, but Ranking Member Senator Chuck Grassley (R-IA) was the only Republican to appear), the Committee was two members short of the quorum required to do business.

While they were still waiting to see if more members would show up, Senator Grassley noted that if a quorum was established he would be requesting that consideration of Taranto and Rosenbaum be delayed for a week. Chairman Patrick Leahy (D-VT) noted that he and Senator Grassley had discussed establishing a process whereby business meetings held for the sole purpose of invoking the extension of consideration of nominees could take place without a quorum, but that other Republican members of the Committee had objected.

Before recessing the meeting where no business had been able to take place, Senator Leahy stated, “The Republicans requested this meeting, even though it would be a pro forma type of thing. They seem to be boycotting the meeting.”

The same thing happened at the regularly scheduled business meeting of the Judiciary Committee the following week, March 22, when Taranto, Rosenbaum, and Gershwin Drain, nominee to the District Court of the Eastern District of Michigan, were scheduled to be considered. Eight of the Democratic Committee members sat and waited; they were two members short of a quorum. Twenty-six minutes after the meeting was scheduled to begin, Senator Grassley arrived, but no other Republican members came.

When Senator Leahy again noted that it appeared that the Republican members were boycotting the committee, Senator Grassley responded that he was not aware of a boycott attempt, but acknowledged that it would be unlikely that any other member of his caucus would appear and allow the committee to conduct its business. Senator Leahy recessed the committee after stating that he would convene it later that afternoon off of the Senate floor when a series of votes were scheduled to take place. That meeting did occur, and the Republican committee members invoked the automatic week’s extension, with the result that no action to move the nominations process forward occurred.

A quorum did appear on March 29. Taranto and Rosenbaum were reported out of Committee on voice votes with only Senator Lee opposing them. A roll call vote was held on Drain, resulting in a party-line vote of 10-8. Five other listed nominees – one to a Circuit Court seat and four to District Court seats – were held over. Since the Senate is leaving on recess after this week, these five judges – William Kayatta, Jr. to the First Circuit, John Fowlkes, Jr. to the Western District of Tennessee, and Kevin McNulty and Michael Shipp to the District of New Jersey – will not receive consideration by the Committee to be advanced to the Senate floor for confirmation until April 19 at the earliest.

In addition to many other tactics to delay, slow-walk, and obstruct the nominations process – tactics that range from refusing to review background materials in a timely manner, to failing to return blue slips, and to filibustering consensus nominees – Republicans in the Senate are also shirking their Constitutional duty to advise and consent by refusing to show up and let the Committee conduct its business. While they are playing the politics of obstruction, justice for millions of ordinary people is being delayed and denied due to a judicial vacancy crisis that has 1 in 10 seats on the federal bench empty.For each day that the nominations process is stalled in the Senate, Americans across the country are prevented from having their day in court.

The Senate Judiciary Committee is scheduled to consider 4 District Court nominees today:

Kristine Baker (Eastern District of Arkansas)

John Lee (Northern District of Illinois)

John Tharp, Jr. (Northern District of Illinois)

George Russell (District of Maryland)

During the Obama presidency, it has been the habit of Republican senators on the judiciary committee to automatically delay every first-time consideration of nominees by one week, so it is likely that the committee will not be permitted to hold votes on these four nominees today.

Lee, Tharp, and Russell have all been nominated to seats that are considered to be judicial emergencies.

When the Senate returns from its recess next week, the Judiciary Committee will hold an Executive Business Meeting and a Nominations Hearing.

On Thursday morning, the committee will hold an Executive Business Meeting at which Republicans will most likely delay a vote on Paul Watford, who has been nominated to fill a judicial emergency vacancy on the Ninth Circuit Court of Appeals.

On Thursday afternoon, the committee will hold hearing on the nominations of Andrew David Hurwitz, also nominated to fill a seat on the Ninth Circuit, and of four district court nominees: Kristine Gerhard Baker, nominated to the Eastern District of Arkansas; John Z. Lee and John J. Tharp, both nominated to the Northern District of Illinois; and George Levi Russell III, nominated to the District of Maryland.

The seats Hurwitz, Lee, Tharp, and Russell would be filling have all been deemed emergency vacancies by the Administrative Office of the U.S. Courts.

With 103 current and future vacancies on the federal bench, the Senate needs to act quickly confirm all 37 pending nominees.

This morning the Senate Judiciary Committee reported five judicial nominees to the Senate floor. Four nominees were reported on a unanimous voice vote: Stephanie Dawn Thacker, Michael Walker Fitzgerald, Ronnie Abrams, and Rudolph Contreras, nominees to the Fourth Circuit, the Central District of California, the Southern District of New York, and the District of Columbia, respectively.

Miranda Du, nominee to the District of Nevada, was reported out on a 10-8 party-line vote.

Fitzgerald and Du have been appointed to vacant seats that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.

The committee also held over until its next meeting a vote on Susie Morgan, nominee to the Eastern District of Louisiana.

The Senate Judiciary Committee today held hearings on the nominations of Stephanie Dawn Thacker to the United States Court of Appeals for the Fourth Circuit and of Michael Walter Fitzgerald, Ronnie Abrams, Rudolph Contreras, and Miranda Du to serve as United States District Judges in the Central District of California, the Southern District of New York, the District of Columbia, and the District of Nevada, respectively.

If confirmed, Fitzgerald and Du will both be filling vacancies that have been deemed “judicial emergencies” by the Administrative Office of the U.S. Courts. Senator Dick Durbin (D-IL) presided over the hearings; also in attendance were committee members Senator Mike Lee (R-UT) and Senator Chris Coons (D-MD).

With 108 vacancies in our federal courts, 32 of them judicial emergencies, the Senate should move swiftly to put these well-qualified nominees on the federal bench.

The bill, introduced by Senator Dianne Feinstein (D-CA) in May, would create 10 new district court judgeships:

2 for the District of Arizona

4 for the Eastern District of California

1 for the District of Minnesota

1 for the Southern District of Texas

2 for the Western District of Texas

The bill would also convert existing temporary judgeships in the District of Arizona and the Central District of California into permanent judgeships. The incumbents in the current temporary judgeships would remain in the converted seats, and the president would name nominees to fill the new positions.

Also on October 6, the committee will vote on five judicial nominees: Evan Wallach to the United States Circuit Court for the Federal Circuit, and four United States District Court nominees (Dana Christensen, District of Montana; Cathy Bencivengo, Southern District of California; Gina Marie Groh, Northern District of West Virginia; Margo Brodie, Eastern District of New York).

All five were automatically held over by the Republican members of the Judiciary Committee at its last Executive Business meeting, rather than being considered on the day their nominations were first brought to the committee.

The creation of new federal judicial seats and the confirmation of nominees to fill them will help to ease the crushing case-loads that are currently overwhelming inadequately staffed federal courts and preventing people from gaining access to justice.

Among the witnesses was Betty Dukes of Pittsburg, CA, a seventeen year veteran employee of Wal-Mart and lead plaintiff in the gender discrimination case broken up by the Court last week. Dukes remains upbeat in her hope that, even without the ability to fight Wal-Mart as a unified class, women subjected to the retail giant’s discriminatory culture and practices will one day obtain justice. However, she testified that many women will give up because it’s too hard to fight the company alone, and especially difficult to fight one’s own employer.

Professor Melissa Hart of the University of Colorado Law School testified to the common threads between the Wal-Mart and AT&T decisions. In both cases, the same five-vote majority of the Supreme Court interpreted procedural rules in ways completely different from their original meaning and with hostility to the class action device. As a result, no court has reached or will be likely to reach the substance of the claims made in those cases. Questioned by Senator Franken, Professor Hart stated that the Court’s interpretation of the Federal Arbitration Act of 1925 was inconsistent with its legislative history and purpose, and that allowing corporations to write class action bans into fine print contracts incentivizes small-dollar rip-offs of hundreds of thousands of hard working people. Franken has introduced the Arbitration Fairness Act in response to AT&T, which would amend the FAA and limit binding mandatory arbitration.

Senator Franken also took to task witness Andrew Pincus, the attorney who represented AT&T before the Supreme Court. Pincus, a partner at corporate defense giant Mayer Brown LLP, wrote in the New York Times and suggested in his opening statement that only plaintiffs’ attorneys looking to rack up huge fees would be hurt by the Court’s ruling. Franken noted that the average partner at Mayer Brown is paid over $1 million per year; Pincus, he said, is in no position to criticize others for a possible financial interest in the workings of the legal system.

Professor James Cox of Duke University School of Law testified on the likely fallout in the financial industry from the Court’s decision in Janus. The narrow and inapt definition adopted by the Court of who can “make” a false or misleading statement will greatly restrict the power of investors to recover damages and enforce anti-fraud laws. Only the Securities Exchange Commission will be able to go after many offenders, and even then there may now be loopholes. But the SEC, Cox explained, has only investigated, much less taken enforcement action, in 17% of resolved securities fraud cases, and it has been hesitant to take action against the biggest Wall Street firms. Connecting back to Wal-Mart, Senator Franken observed that the Equal Employment Opportunity Commission, the government body charged with pursuing workplace discrimination claims and to which many of Dukes’s colleagues may now have to turn, has a backlog of 80,000 claims to hear.

Senator Whitehouse observed that the procedural hurdles, arcane rules, and cramped statutory interpretations that characterize recent Supreme Court decisions might be summed up in two words: “corporation wins.” In closing, he extolled the role of jury in our constitutional design, and lamented the Court’s “steady addition of trouble, toils, and snares” between everyday Americans and their right to have their cases heard by their peers.

On Thursday, the Senate Judiciary Committee reported out five nominees: Goodwin Liu, nominee to the United States Court of Appeals for the Ninth Circuit on a party-line vote; Esther Salas, nominee to the United States District Court for the District of New Jersey on a unanimous voice vote; J. Paul Oetken and Paul A. Engelmayer, nominees to the United States District Court for the Southern District of New York on unanimous voice votes; and Ramona V. Manglona, nominee to the United States District Court for Northern Mariana Islands on a unanimous voice vote.

The Senate Judiciary Committee has scheduled a hearing for next Wednesday on four judicial nominees: Henry Floyd to the United States Court of Appeals for the Fourth Circuit; Nelva G. Ramos to the United States District Court for the Southern District of Texas; Richard B. Jackson to the United States District Court for the District of Colorado; and Sara L. Darrow to the United States District Court for the Central District of Illinois.

Last night the Senate agreed to vote on Monday at 5:30p.m. on the nomination of Jimmie Reyna to the United States Court of Appeals for the Federal Circuit. Mr. Reyna currently serves as a partner and director at Williams, Mullin P.C., in Washington, D.C. He is a leading international trade attorney with significant experience in trade policy, business regulation, and compliance law. Reyna was nominated on September 29, 2010, and he was reported out of the Senate Judiciary Committee unanimously on March 10, 2010. If confirmed, Mr. Reyna would become the first Hispanic American ever to serve on the Federal Circuit.

Yesterday the Senate Judiciary Committee held an executive business meeting at which it reported out four nominees and held over five nominees until its next meeting on April 7th.

John J. McConnell, nominee to the United States District Court for the District of Rhode Island was reported out on a vote of 11-7, with Senator Graham (R-SC) voting with the Democratic committee members. Three other nominees, Kevin Sharp, nominee to the United States District Court for the Middle District of Tennessee, Roy Bale Dalton, Jr., nominee to the United States District Court for the Middle District of Florida, and Claire C. Cecchi, nominee to the United States District Court for the District of New Jersey were all reported out en banc.

Goodwin Liu, nominee to the United States Circuit Court for the Ninth Circuit was held over for the second time, at the request of Senator Grassley (R-IA). Esther Salas, nominee to the United States District Court for the District of New Jersey, J. Paul Oetken, nominee to the United States District Court for the Southern District of New York, Paul A. Engelmayer, nominee to the United States District Court for the Southern District of New York, and Ramona V. Manglona, nominee to the United States District Court for the Northern Mariana Islands were all held over for the first time.

The following testimony was submitted to the United States Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights:

Alliance for Justice is a national association of over 100 organizations dedicated to advancing justice and democracy. We have an unshakable belief in the right of all Americans to practice their religion without interference and that no citizen should ever be afraid to worship, establish religious communities, or speak openly about their religious precepts. Efforts to broadly demonize the Muslim religion or its adherents are contrary to the most fundamental principles that undergird our nation’s values and our Constitution, which guarantees to all Americans an inalienable right to freedom of religion, speech, and peaceable assembly.

It is deeply disturbing to see individuals, organizations, and members of the media intentionally advance bigotry and promote intolerant acts against Muslims, but it is unconscionable for those holding public office to participate in such efforts. Recent efforts by members of Congress to denigrate an entire group of citizens by tarring them as radicals, extremists, or terrorist sympathizers, should not go unanswered and today’s hearings are a welcome and hopeful sign that our nation has not forgotten its foundational principles.

When any group is singled out for persecution or investigation, based on nothing more than its religious affiliation, we all lose a measure of our own liberty. The fabric of our free society is eroded when all Muslims are painted as terrorists or potential criminals, despite clear evidence to the contrary, and in spite of the unambiguous message from law enforcement agencies that American Muslims have been active and willing partners in the effort to protect the nation from terrorist attacks. The notion of collective guilt is utterly anathema to American principles and must be rejected without equivocation.

Nothing could do more damage to our ability to protect ourselves from violence than to cut off from American life the very people whose cooperation is desired to help identify those who mean us harm. Our strength as a nation comes from our diversity and from a belief in a common destiny. Scapegoating the entire Muslim community for the acts of a few and directing unremitting hate speech at Muslim beliefs and institutions only serves to create a gulf that divides neighbor from neighbor and weakens the fabric of our society at a time when unity is essential.

The subcommittee and Chairman Durbin are to be commended for standing forthrightly for religious freedom, and reminding us that we are one people untied by a shared belief in tolerance, diversity, and liberty.

Yesterday the Senate confirmed Max Cogburn, Jr. to a seat on the United States District Court for the Western District of North Carolina on a vote of 96-0. The confirmation vote was significant in two ways. First, the Senate has up until this point only confirmed nominees on Mondays, so having two votes in one week is a good sign. Second, Cogburn was the fourth nominee confirmed this week, the most out of any week this Congress. With 117 remaining vacancies on the federal bench the Senate needs to keep confirming at least that many nominees a week to cut into the huge backlog of vacancies.

The Senate Judiciary Committee also reported six nominees to the floor. Caitlin Halligan, nominee to the United States Court of Appeal for the District of Columbia, was reported out on a 10-8, party-line vote. The other five nominees—Jimmie Reyna, nominee to the United States Court of Appeal for the Federal Circuit, John A. Kronstadt, nominee to the United States District Court for the Central District of California, Vincent L. Briccetti nominee to the United States District Court for the Southern District of New York, Arenda L. Wright Allen, nominee to the United States District Court for the Eastern District of Virginia, and Michael Francis Urbanski, nominee to the United States District Court for the Western District of Virginia—were reported out on voice votes. There are now three circuit court and eight district court nominees awaiting confirmation votes on the Senate floor.

On Thursday, the Senate Judiciary Committee sent seven more of President Obama’s judicial nominees to the full Senate for a final vote. They are joining 16 others currently stuck in procedural quicksand, blocked from confirmation by an intractable and shameless Republican minority.

The clock is ticking, though, on breaking the logjam and getting a vote on any of them before the Senate heads for the exits to go home and campaign. Sadly, it’s our badly overburdened judicial system that’s getting trampled as Congress rushes out the door.

There has always been a political aspect to the nomination of judges, especially at the appellate level. It’s a natural consequence of a process that requires Senate confirmation. But today we are facing unprecedented obstruction from Republicans that crosses the boundary from the acceptably political to an outright assault on long-standing traditions and, more importantly, on the functioning of the federal judiciary itself.

The evidence for how bad things have gotten is spelled out in Alliance for Justice’s new report on judicial nominations that covers the Obama Administration’s first 20 months in office.The report shows that President Obama has seen a smaller percentage of his nominees confirmed at this point in his presidency than any president on history. Nominees are held up with secret holds, even those from states where Republican Senators support them. Uncontroversial nominees are reported out of the Judiciary Committee unanimously or with very little opposition, but then are put into the procedural deep freeze and denied a final vote, often for months. Republicans who voted for the nominees in committee then turn around and participate in a deliberate strategy to prevent them from actually taking their seat on the bench. It’s getting hard to tell if these are judicial appointees or hostages.

Obviously, the Republicans’ desire to obstruct is not based on concerns about qualifications, or, in some cases, even ideology. It’s just naked, unabashed obstruction for obstruction’s sake. This is a new level of crass political theater that has never before been applied broadly to all judicial nominees, especially those at the district court level. Senator Sheldon Whitehouse in yesterday’s hearing talked about this trashing of long traditions of Senate behavior, reminding the committee (apparently to no avail), “that when the two home state Senators approved a nominee, when it cleared the background check, and when it cleared the committee, they got a straight up or down vote on the senate floor without procedural obstruction, period…. By erecting a blockade of procedural obstruction for district court nominees …it is a new threshold that we will cross.”

But there’s more to this than just political squabbling. There is a genuine crisis in the federal courts. Every time a judicial appointment is delayed, a courtroom remains without a judge.

There are now 49 official “judicial emergencies” in 22 states, where there simply aren’t enough judges to hear the cases that have been filed in a timely manner. Thousands of plaintiffs and defendants, many of whose lives and livelihoods depend on the outcome of their case, face long delays. If the principle that “justice delayed is justice denied” is true, then it must be said that Republicans are contributing to the undermining of American justice itself. They may think they’re punishing President Obama with their shenanigans, but the collateral damage extends to the American people who are entitled to their day in court.

With the Senate clock ticking away, 23 nominees are waiting for a vote and 23 courts are waiting for a judge.

Perhaps before Senators go home to ask voters to re-elect them, they should do what they were elected to do in the first place and perform their constitutional duty of fully staffing the federal courts.

Alliance for Justice was in Las Vegas for the fifth annual Netroots Nation conference, a gathering of progressive bloggers, activists, organizations, and leaders. Alliance for Justice sponsored the panel, Liberal Perspectives on the Kagan Supreme Court Nomination, a conversation with Senator Benjamin L. Cardin (D-MD); Keith Kamisugi, Director of Communications at the Equal Justice Society; Pam Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and founding director of the school’s Supreme Court Litigation Clinic; Nan Aron, President and founder of Alliance for Justice; and Dahlia Lithwick, senior editor and legal correspondent for Slate, with Joan McCarter, Senior Policy Director at Daily Kos, moderating.

The panel provided a fascinating conversation about the Kagan confirmation hearing, liberal judicial philosophy, and a progressive vision of the constitution. In addition to being an amazing panel, audience members encouraged Joan McCarter, who moderated the Ask the Leader session with Senate Majority Leader Harry Reid (D-NV), to ask Senator Reid about the pace of judicial confirmations. The next day she did ask the question, which was received with much applause by the audience. Unfortunately it seems that time is running out before the August recess and with Republican obstruction running rampant, Reid could only promise to try his best to schedule votes for the 22 judicial nominees in addition to Supreme Court nominee Elena Kagan awaiting final confirmation.

For the first time in history, the Chamber has come out in opposition to a federal District Court nominee. Why? What calamity spurred this first-ever action? John “Jack” McConnell, the nominee for the bench in the District of Rhode Island, had taken a lead role representing the State of Rhode Island in a public nuisance lawsuit that sought to protect children from the toxic effects of lead-paint poisoning. That apparently is the worst thing a district court nominee has ever done to business interests.

The Chamber’s opposition was a result of McConnell’s work with the law firm Motley Rice, and more specifically his leading role in the case Rhode Island v. Lead IndustriesAssociation. McConnell, in this case, as in many others, sought justice for the “victims of corporate malfeasance.”

Despite the aggressive corporate campaign against him from the Chamber and other business groups, McConnell was voted out of the Senate Judiciary Committee yesterday with an 11-6 vote, and now awaits, along with 25 other judicial nominees, a final vote from the full Senate.

The fact that McConnell was strongly opposed by business groups hostile to consumer protections and the rights of ordinary Americans is all the more reason to call for his swift confirmation by the Senate. Our courts have become bastions of corporate influence and we need to restore balance in the judiciary by appointing judges who don’t automatically favor the interests of the powerful and who treat all those who come before them fairly and impartially. Even kids poisoned by lead paint.

This morning, the Senate Judiciary Committee held a hearing for Professor Goodwin Liu, nominated for a seat on the 9th Circuit Court of Appeals. The hearing was originally set for March 10th, but was postponed twice due to GOP opposition. The stall tactics are part of a pattern of obstruction by Republicans to slow the pace of judicial confirmations.

Liu, age 39, is Associate Dean and Professor of Law at the University of California, Berkeley School of Law (Boalt Hall). He possesses sterling academic and professional credentials. An acclaimed scholar, teacher, and lawyer, Liu is widely considered one of the brightest legal minds of his generation. The American Bar Association’s Standing Committee on the Federal Judiciary unanimously gave Liu its highest rating of “well qualified.”

He handled criticism about his record and qualifications with grace at this mornings hearing. Senator Dianne Feinstein (D-CA), who chaired today’s proceedings praised him saying, “you’ve got amazing cool.”

His academic and professional record indicates that he will approach cases with an open mind, and consider the law and facts carefully before ruling. He has spent his career advocating for the right of equal justice for all, not a select, privileged few. Given Liu’s outstanding qualifications, the Senate Judiciary Committee and the full Senate should allow no further delays to the consideration of Liu’s nomination. Read our recently released report on Liu here: http://www.afj.org/check-the-facts/nominees/goodwin-liu-report-final.pdf

Democratic Senators took to the floor of the Senate today to protest the unprecedented level of obstruction towards nominees by their Republican colleagues.

The Obama administration has 64 nominees pending in the Senate.

There are currently 6 circuit court nominees awaiting a final confirmation vote:

• Jane Stranch and Thomas Vanaskie were nominated on August 6, 2009: pending 218 days• Denny Chin and Rogeriee Thompson were nominated on October 6, 2009: pending 157 days• Alberto Diaz and James Wynn were nominated on November 4, 2009: pending 128 days

Over half of Bush’s nominees were confirmed by either unanimous consent or voice vote.In this Congress,Republicans have required cloture votes on uncontroversial nominees such as as Barbara Keenan for the 4th Circuit Court of Appeals who was ultimately confirmed by a vote of 99-0.

That’s right, 99-0. The same people who requested the vote did not even voice opposition.

They are stalling not on the basis of the nominees’ records or qualifications, but simply to obstruct Obama’s nominees. In addition to Keen, there is the example of Judge Greenaway, despite the fact that he was reported out of committee unopposed and was confirmed without opposition, he had to wait 235 days—almost eight months—for a final vote where he was confirmed 84-0. Jane Stranch and Thomas Vanaskie are rapidly approaching that same timeline, both have been waiting 218 days.

There are currently 102 federal court vacancies, and according to the Senate Judiciary Committee, 31 of those vacancies are classified as “judicial emergencies” because of the size of the caseload in the court or the amount of time a seat has sat empty.

Senator Franken (D-MN) summed it up well during his speech on the Senate floor today:

After the State of the Union when President Obama criticized Republican Senators for obstructionism, saying “The confirmation of well-qualified public servants should not be held hostage to the pet projects or grudges of a few individual Senators.” We have decided to start a new series titled “American Idle” chronicling the nominees who have been or are currently being held hostage in the Senate.

On Wednesday, Alliance for Justice blasted Senate Republicans for holding hostage a highly qualified and uncontroversial nominee. Unopposed in the Senate Judiciary Committee, Judge Joseph Greenaway was nominated by President Obama to the Third Circuit Court of Appeal on June 19, 2009. A “hold” has been placed on his nomination.

Before his appointment to the United States District Court in New Jersey by President Clinton in 1995, Greenaway served as a litigator, prosecutor and in-house counsel. While on the federal bench, Judge Greenaway amassed a record and a reputation for taking the facts of each case one by one, without professing allegiance to a larger interpretational framework or ideology, and a willingness to both examine the nuances of individual cases and engage larger constitutional issues.

If confirmed, Judge Greenaway would be only the 15th judge confirmed since the beginning of this Congress.

Although President Obama has nominated highly qualified attorneys and judges to the federal bench, Republicans have consistently responded by either delaying the votes or outright attacking individual nominees. Republican senators have threatened filibusters or used the practice of putting a “hold” on a nominee to prevent up-or-down votes from taking place.

To his credit, Senator Leahy (D-VT), Chair of the Senate Judiciary Committee, has held prompt hearings on all of President Obama’s nominees. But, as a result of abandoning the tradition of challenging only highly controversial nominations, Republicans indefinitely blocked votes on the floor even though many nominees were reported out of committee months earlier. Complicating matters further, Senate Majority Leader Harry Reid (D-NV), struggled to find the floor time needed to overcome filibuster threats, which take an entire day of Senate floor time, while the Chamber was mired in health care reform.

By the end of December, the Senate had voted on only 13 nominees. By comparison, in President George W. Bush’s first 17 months, the Democratically-controlled Senate, with Senator Leahy chairing the Judiciary Committee, confirmed 100 nominees.

Republicans are abusing Senate rules and are again putting politics ahead of placing qualified judges who will uphold our constitutional values on our nation’s courts. It is time for Republicans to put the needs of Americans above their partisan politics, their hypocrisy has already delayed justice for too long.

This week, the Senate Judiciary Committee held a hearing on two judicial nominees, Judges Alberto Diaz and James A. Wynn, Jr. both nominated to the Fourth Circuit Court of Appeals. The committee decided to wait until Christmas Eve to vote on the nomination of Judge O. Rogeriee Thompson to the First Circuit Court of Appeals.

As of today, the Senate has confirmed 11 federal judges, including Supreme Court Justice Sonia Sotomayor. By December 17, in the first years of both the Clinton and George W. Bush administrations each had 27 federal judges confirmed.

“I hope Senate Republicans will lift their objections, and allow us to proceed on the 27 nominations reported by the Judiciary Committee. Absent cooperation to confirm nominations, this Congress will be recorded in history as one of the least productive in the confirmation of judicial nominations. I hope the New Year will bring a renewed spirit of cooperation.”

The president must nominate and the Senate must confirm judges who will be strong voices for upholding the Constitution and the law to provide equal justice and protect personal freedoms for everyone in America.

On Tuesday, the Senate confirmed Jacqueline Nguyen to a seat on the United States District Court for the Central District of California by a vote of 97 to 0. Judge Nguyen, previously a Superior Court Judge for the County of Los Angeles, is the first Vietnamese American to serve as an Article III judge in our nation’s history. She is the seventh Obama district court nominee to be confirmed.

Also on Tuesday, the Senate Judiciary Committee held a hearing on the nomination of O. Rogeriee Thompson to the United States Court of Appeals for the First Circuit. There were no Republican committee members present at the hearing. If confirmed, Thompson would be the first African American and the second woman to serve on the First Circuit.

On Thursday, the Senate Judiciary Committee advanced Thomas I. Vanaskie, nominee to the United States Court of Appeals for the Third Circuit, to the full Senate by a vote of 16-3, with Grassley (R-IA), Coburn (R-OK), and Cornyn (R-TX) voting no. The committee also advanced Louis B. Butler, Jr., nominee to the United States District Court for the Western District of Wisconsin, to the full Senate by a party-line vote of 12-7.

On Thursday, the Senate Judiciary Committee held over votes on Denny Chin, nominee to the United States Court of Appeals for the Second Circuit, Rosanna Peterson, nominee to the United States District Court for the Eastern District of Washington, and William M. Conley, nominee to the United States District Court for the Western District of Wisconsin, until next Thursday.

This morning, President Obama announced three district court nominations: Nancy D. Freudenthal to the United States District Court for the District of Wyoming, D. Price Marshall Jr. to the United States District Court for the Eastern District of Arkansas, and Benita Y. Pearson to the United States District Court for the Northern District of Ohio.

Hamilton, President Obama’s first judicial nominee, was nominated on March 17, and voted out of the Senate Judiciary Committee on June 4, with a 12-7 vote along party lines.

Judge Hamilton has an exemplary record in the law and sterling credentials. The American Bar Association gave Judge Hamilton its highest rating of well-qualified.

Judge Hamilton has the backing of both his home state senators, Republican Richard Lugar and Democrat Evan Bayh. Senator Lugar stated he is “enthusiastically” supporting Hamilton’s elevation, while Senator Bayh praised the President for selecting nominees that “Republicans and Democrats can work together” on. Indiana conservatives who actually know him think he’s a stellar choice.

Geoffrey Slaughter, President of the Indianapolis chapter of the Federalist Society, praised Hamilton’s nomination observing, “I regard Judge Hamilton as an excellent jurist with a first rate intellect . . . His judicial philosophy is well within the mainstream.”

Every Senate Republican signed a letter on March 4, 2009, vowing to block President Obama’s nominees. Since then, the Republicans have carried out that threat. Only two circuit court judges have been confirmed by the Senate, and both were subjected to unnecessary, time-consuming, procedural delays – even though the nominees were approved by wide margins (Lynch 94-3, Davis 72-16).

Resorting to the same old playbook of partisan politics, Republicans are obstructing the judicial nomination process as a last-ditch effort to maintain their hold over the judiciary and halt a return to a balance of power. They are also using attacks on Judge Hamilton as an opportunity to keep their base engaged.

Senator Sessions, the ranking Republican on the Senate Judiciary Committee, sent a letter on October 30, asking his colleagues to oppose Judge Hamilton’s nomination and signaling his intention to filibuster.

Sessions suggested that Hamilton has “drive[n] a political agenda,” while citing rulings and mischaracterizing the record on decisions Judge Hamilton issued on religious freedom, criminal law, and a woman’s right to choose.

Today the Senate Judiciary Committee held a hearing on 4 federal district court nominees all nominated to fill seats in California: While Senator Feinstein (D-CA) was scheduled to chair the committee, she ended up busy on the Senate floor and Senator Franken (D-MN) chaired today’s hearing. The four nominees: Jacqueline H. Nguyen to the Central District of California; Edward Milton Chen to the Northern District of California; Dolly M. Gee to the Central District of California; and Richard Seeborg to the Northern District of California represent a number of firsts and the hearing marks a historic day for Asian Americans.

The hearing room was packed with prominent members of the Asian American legal community, family of the nominees, and other supporters, a somewhat unusual occurrence for district court nominees, but expected given its historical significance. There was a noticeable feeling of pride among many of the attendees today surely due to the excellent qualification s of the nominees. Two have proven track records as sitting jurists, and all three of the Asian American nominees have strong support from the Asian Pacific American community in addition to bipartisan support from bar organizations and leaders in the legal community.

If confirmed, Edward Milton Chen would be the first Asian Pacific American district court judge in the history of the NDCA, (this is especially significant given that approximately 35% of the population in San Francisco is Asian Pacific American). Dolly M. Gee would be the first Chinese American female district court judge in the history of the United States, and Jacqueline H. Nguyen would be the first Vietnamese American district court judge in he history of the United States and the first Asian Pacific American female district court judge in California history.

Well, the August recess is over, Congress is back in town and as we move into the last quarter of the year, it seemed like a good time to get a sense of the lay of the land when it comes to judicial nominations.

Just two days ago, the White House named Virginia State Supreme Court Justice Barbara Milano Keegan to a seat on the Fourth Circuit; she joins Judge Andre Davis of Baltimore as a nominee to that court. There are currently five vacancies on the Fourth Circuit; the bench, once a bastion of ultra-conservative jurisprudence, is now evenly-divided between Democrat and Republican appointees, particularly as a result of somewhat-unexpected departures of high-profile conservative judges like Michael Luttig, now general counsel at Boeing, and Chief Judge Karen Williams, who resigned just a few months ago for health reasons. An ideological shift on the Fourth Circuit could mean major and positive changes in not just civil rights and criminal cases, among other issues dealt with by courts around the country, but in issues relating to executive power and national security; the Fourth Circuit has jurisdiction over many cases relating to the Pentagon, CIA and terrorism policies.

The Fourth Circuit isn’t the only federal appeals court poised for a change: the Third Circuit is also evenly split. President Obama has named Joseph Greenaway and Thomas Vanaskie to fill the two vacancies on that court. (For more information on vacancies and nominees, please see our handy-dandy Federal Circuit Court Vacancies Chart.

Despite tapping the aforementioned nominees, as well as David Hamilton (Seventh Circuit), Gerard Lynch (Second Circuit), Beverly Martin (Eleventh Circuit) and Jane Stranch (Sixth Circuit), there are still 13 circuit court seats awaiting a nominee, as well as 63 district court seats (the president has named nine district court nominees; there are 72 total vacancies).

AFJ has prepared a fact sheet examining the pace of President Obama’s judicial nominations in comparison to President George W. Bush’s at the same time in his presidency. Currently, the disparity between the two is 68% to 38% on court of appeals nominees and 37% to 13% on district court nominees.

Clearly, numbers do not tell the whole story. The president and the Congress are confronting a number of critical issues, the economy and health care among them; they also had a Supreme Court confirmation to handle. However, the numbers can and should serve as a reminder that judicial nominations are also extremely important. Given that the decisions made by the men and women of the federal judiciary affect millions of Americans every day on issues ranging from civil and workers’ rights to environmental and consumer protections and a host of other topics, judicial nominations should not go by the wayside. A president’s nominees to the federal bench are, in many ways, his longest-lasting legacy. Justice John Paul Stevens has sat on the bench for more than 30 years and seven presidencies; Judge Manuel Real was nominated by President Johnson in 1966 and is still an active judge more than 40 years and nine presidencies later.

We’ve said it before and we’ll say it again: judges matter. As we move into the fall and winter of 2009, we urge the White House and the Senate to nominate and confirm highly qualified nominees who will uphold our core constitutional values.

The House Judiciary Committee just wrapped up its two and a half year investigation into the improper firings of nine United States Attorneys. Recently released documents and an article in today’s Washington Post detail the 2006 firing of David C. Iglesias, U.S. Attorney of New Mexico. Emails and transcripts of closed-door testimony by former Bush counsel — and former Supreme Court nominee — Harriet Meirs, and political rainmaker Karl Rove detail a calculated effort to get rid of career attorneys who failed to tow the party line.

Iglesias was ousted after state GOP and Republican members of the Congressional delegation were angered when Iglesias failed to pursue cases against Democrats before the 2006 elections. E-mails detail lengthy communications between lawyers and aides within the White House over Iglesias’ failure to initiate public corruption suits. Meirs told Committee investigators that she was contacted by an “agitated” Rove in September of 2006 about Iglesias’ slow pace. Rove described him as a “serious problem” and said he wanted “something done” about it. GOP figures in New Mexico thought that an investigation could help then-Republican Representative Heather Wilson win re-election. Rove and Meirs deny any wrongdoing. Ultimately, Alberto Gonzales and his deputy Kyle Sampson resigned—due in part to the public uproar over the politicized firings at the Department of Justice.

What happened to these U.S. Attorneys was wrong. The Bush White House blurred the line between serving justice and playing politics. Decisions were made with an eye towards the next election, and life-long careers were taken down in its pursuit. Thankfully, President Obama has promised to restore justice to the Department of Justice. While Obama cannot undo this past injustice, he can move forward with a renewed effort to flesh out bad acts so that the public can again trust its government.

This is taking place at the same time as the new Attorney General, Eric Holder, is investigating the policy-driven legal conclusions made by lawyers within the Department of Justice’s Office of Legal Counsel. Many suspect that these lawyers drafted memos authorizing the use of torture well after the Bush White House had already approved its use. As the investigation into the U.S. Attorneys’ firing shows, without an effort to get to the truth, retrenched political interests will evade justice. And, in the case of U.S. approved torture, too much is at stake to not fully investigate the circumstances surrounding what can only amount to a full-scale breakdown of justice.

A spirited rally was held today on Capitol Hill in support of Judge Sotomayor’s confirmation to the Supreme Court. Senators Cardin, Schumer, Whitehouse, and Menendez and leaders of several civil rights organizations spoke to the crowd about this historic nominee and her impending confirmation.

Senator Whitehouse praised Sotomayor’s credentials and stated that “She is unfairly trapped in a struggle by the Republicans to gain conservative control over America’s judiciary. We not only have to get her confirmed on her own merits, but keep blowing the whistle on that Republican effort.”

“Hundreds of federal judges and several more Supreme Court justices will be appointed during President Obama’s administration,” said AFJ President Nan Aron. We must take this opportunity to start the conversation we have long been denied about the need for strong and progressive voices on the court. We must rise above the empty rhetoric of the right – judicial activism, legislating from the bench. Sotomayor’s confirmation will start that process. We must keep up the pressure to appoint judges who will uphold the Constitution’s promise of equal justice for all.”

Today, we at AFJ are releasing fact sheets on our website discussing various issues that have been raised during senators’ opening statements at today’s confirmation hearing. If you want to learn more about the issues at hand check out the recently released fact sheets on international law, the takings clause, and original intent. We will add more fact sheets as the hearing progresses, so if there is anything in particular you want to know more about, let us know and we’ll be sure to address it. In case you missed it, last week we posted our analysis of the Ricci case on Huffington Post.

The hearing will resume at 2pm today and we’ll get to hear from Senator Franken as he makes his debut on the Senate Judiciary Committee.

The Senate Judiciary Committee will convene Monday morning at 10:00 a.m. to begin the hearing on Sonia Sotomayor’s nomination to become an associate justice of the Supreme Court. The hearing will be a consequential moment in our history, but not so much because the confirmation of Judge Sotomayor is on the line. Barring some unforeseen and very unlikely event, Republicans will quickly back off attacks on Judge Sotomayor herself. They recognize that it is politically dangerous to criticize her given her appealing personal story of rising from a housing project in the Bronx to the pinnacle of our judiciary through enormous talent and hard work, her record as a moderate who feels bound to follow the law strictly on the bench, and her ethnicity and gender.

Instead, they will use the occasion to promote their distorted view of the law – not what it is but what they would like it to be in a republic ruled by hard-right judicial activists such as Chief John Roberts and Justice Samuel Alito. For that reason, the week will offer an enormously important contrast between the nominee and her supporters and this ominous Republican vision.

So, what are the themes that Republicans will raise in response to Judge Sotomayor’s nomination?

First, they will highlight the Ricci case, the challenge by white firefighters to New Haven’s voluntary effort to avoid discrimination against minority firefighters. Judge Sotomayor, of course, sat on a panel of the Second Circuit that summarily affirmed the lower court’s decision that New Haven’s decision to scrap a test for promotion of firefighters to avoid disproportionately excluding black and Hispanic applicants was consistent with Title VII of the Civil Rights Act of 1964. Repudiating decades of settled civil rights law, the Supreme Court reversed that decision in a 5-4 opinion. The five conservatives on the Court, who have traditionally been hostile to claims of discrimination by minorities, created a new rule and broke with standard practice by directing judgment for the white firefighters, rather than sending the case back to the lower court so that New Haven could prove that it met the new standard. While Republicans will criticize Sotomayor’s participation in the panel decision and will bring in the lead plaintiff, Frank Ricci, to testify (surely they would not suggest that empathy for Ricci should influence the result), the fact remains that 11 of 21 judges who reviewed Mr. Ricci’s claim ruled against him. Judge Sotomayor can hardly be considered out of the mainstream or at fault for failing to apply the law that the conservatives made up when the case reached the Supreme Court.

Republicans will also use the hearing to promote guns. In their continuing quest to ensure that every American is armed, they will criticize a decision in which Judge Sotomayor, sitting on a unanimous panel of the Second Circuit, held that the Second Amendment to the Constitution, which ensures against federal limitations on an individual right to bear arms, does not prohibit state limitations on guns. Unfortunately for Republicans, the Supreme Court has held the very same thing three times. To find fault with Judge Sotomayor’s decision, her critics have to argue that she should have thrown the rule of law to the winds and ignored Supreme Court precedent. Even conservative icons of the bench, Judges Frank Easterbrook and Richard Posner, have agreed with Judge Sotomayor on this issue. That, however, is unlikely to stop conservatives from using the occasion to lecture about the sanctity of the Second Amendment as a guarantee of fundamental rights.

Republicans will also raise questions about abortion – even though Judge Sotomayor has never ruled on abortion and does not have any known public statements on the issue. In any event, support for Roe v. Wade, which is the law of the land, can hardly be a ground for disqualification from the Supreme Court. There will be no traction in criticizing Judge Sotomayor on this issue, but Republicans are likely to use the opportunity to burnish their anti-choice credentials, as if anyone had any doubt.

Republicans will criticize Judge Sotomayor for two decisions involving takings of private property by local governments. Again, both decisions are based directly on Supreme Court precedent – namely the Court’s controversial but binding decision in Kelo v. City of New London. Because Kelo has proven unpopular, however, Republicans will try to tie Judge Sotomayor to it in a critical manner, even though it remains the law of the land, which she, as a judge, is required to apply.

Republicans will also use Judge Sotomayor as a foil to fulminate against importing international law as the basis for deciding domestic legal issues. Judge Sotomayor has been very clear that she does not believe that the law of other nations or international law offer a basis for decision in the courts of the United States. Indeed, there is nothing in any of her opinions that suggests otherwise. Republicans, therefore, will attempt to misconstrue a speech she gave in which she allowed that good ideas may arise outside the United States and we should be receptive to them. That is a far cry from endorsing international sources of law as binding in the United States.

Finally, Republicans will attack the activities of the Puerto Rican Legal Defense Fund (PRLDEF), which Judge Sotomayor served as a member of its Board of Directors prior to going on the bench. PRLDEF is an outstanding organization that has done exceptional work in promoting civil and constitutional rights. It operates in the great tradition of the NAACP Legal Defense Fund and other public interest legal organizations that have helped America to fulfill its promise as the cradle of liberty and opportunity. Republicans should be ashamed of trying to score political points off of Judge Sotomayor’s commitment to the proud tradition of public interest law.

In sum, next week will do more than allow Americans to learn more about Judge Sonia Sotomayor, it will also present an opportunity to examine the legal agenda of the hard-right. In contrast to the sterling nominee who will sit in front of the Senate Judiciary Committee as the embodiment of the opportunities that America, because of its values and laws, provides to those who work hard, the ultraconservative legal agenda will appear small, ungenerous, mean-spirited, and exclusive.